Separate Spheres Revisited:
On the Frameworks of Interdisciplinarity and
Constructions of the Market
Anat Rosenberg
Historical analyses of modern law and literature tend to fall into one of two interpretive
frameworks. One suggests that law and literature reinforce the same conceptual and
ideological developments; the other reads radical separations, associating law with rule,
reason, self-interest, and hegemony, and literature with plurality, emotion, empathy, and
subversive counter-narratives. The two interpretations have roots in cultural studies, and
both inform analyses of the relation of law and literature to the rise of nineteenth-century
liberalism.
I argue that these are not two alternative interpretations, but two partial ones,
and that a full account of law and literature as modern cultural discourses often requires
both, but modified. An alternative framework emerges from an examination of a basic
tenet of nineteenth-century liberalism – the notion of separate spheres, in two well-known
cultural discourses of the nineteenth-century – classical contract law, and realist novels.
Law and novels grounded importantly different interpretations of the separation
of spheres, and in consequence of the economic sphere – the market. The differing
visions, however, do not fall along the classic oppositions between law and literature, for
both emerged from joint liberal anxieties.
The polarized framework of analysis, which reads either common or
oppositional stances toward classical liberalism in law and literature, in fact serves a
single historical narrative: that of liberalism as an essential entity one could either
oppose or support. The cultural negotiation over separate spheres, however, is better
understood as a "varieties of liberalism."
Introduction .................................................................................................................................................... 1
I. Separate Spheres and the Market ................................................................................................................ 4
II. Contract Law and the Market .................................................................................................................... 6
A. The Conceptual Structures of Classical Contract Discourse ................................................................. 7
B. The Promise of Marriage and Separate Spheres ..................................................................................11
III. Novels and the Market .............................................................................................................................14
A. The Single Arena .................................................................................................................................15
B. An Embedded Economy ......................................................................................................................17
C. Single Arena or Separate Spheres? ......................................................................................................24
IV. Contract Law, Novels, and Joint Liberal Anxieties .................................................................................26
Conclusion .....................................................................................................................................................30
INTRODUCTION
How did the conceptual structures of western capitalist democracies develop? Cultural studies
offer fruitful historical engagements with this question, often through interdisciplinary studies of
1
such myriad concepts as privacy, natural order, contract, or romantic love, and their evolving
meanings.
Studies of law within this framework are substantively interesting and theoretically
liberating for "law and…" scholarship. The limits implicit in a conceptual focus on any one
relationality: law and architecture, law and economics, law and literature, etc., are opened up and
nuanced through a historically contingent relationality pertaining to specific ideas, ideologies, or
concepts.
But history too emerges in conceptual relationships. In law and literature, historical
analyses frequently fall into a polarized framework. At one pole, law and literature appear as
mutually supportive hegemonic discourses. At the other, law is hegemonic while literature is
counter-hegemonic, and, along the same lines, law is associated with rule, formality, reason, and
self-interest, while literature enables pluralism, equity, emotion, and empathy.1
Both poles serve critical projects within legal studies; both are situated within and
substantiated by cultural theory. Yet, the polarized framework is often self-defeating in terms of
historical understanding, and in terms of the critical impulse. Neither pole is sufficient in itself,
yet to keep both in view each must be modified.
I use the lens of liberalism-critique to make a case for an alternative framework for
interdisciplinary discourse analysis in law and literature. To do so, I examine the construction of a
basic tenet of nineteenth-century classical liberalism – separate spheres, in two central sites of the
era – classical contract law and realist novels.
The argument is simple. Nineteenth-century law and literature construed spheres
differently. In particular, their idea of the economic sphere differed in important ways. But, the
differences do not fall along the separating lines of hegemony/counter-hegemony, reason/emotion
and so forth. The differences do not fall along these lines because there was a common streak
shared by nineteenth-century law and literature which was no less important than difference: both
2
responded to joint liberal anxieties, particularly to the need to make sense of, and represent, the
capitalist division of labor. Novels and law were both liberal, but differently liberal.
I am thus going to work within a tension: on the one hand, identify commonalities
between law and literature which are historically significant – in line with the commitment of
cultural studies to trace "unconscious mechanisms that underlie [] central solidarities"2; on the
other hand, insist on differences which are discourse-specific, and so, in Clifford Geertz's words,
engage in "the management of difference."3
While both law and literature construed a liberal worldview, the meaning and content of
their liberalism differed. Classical liberalism was never a single essential idea; as David
Kaufmann argues, "the 'liberal tradition' is only a tradition in that its participants try to solve
similar problems, not . . . because the solutions are the same."4 Accounts of hegemony and
resistance, of liberalism, and of the historical relation of law and literature to these and to each
other, are thus modified.
Part I recounts the story of the historical emergence of separate spheres in modern
understandings of the social structure, and the criticisms directed toward that story. Part II turns
to historical accounts of the legal constitution of separate spheres, particularly the market – or
economic sphere, concentrating on the common law of contract. Part III draws on a number of
canonic Victorian novels to examine their significantly different version of separate spheres and
its implications for construing the market. Parts II and III together offer a critique of the story of
sphere separations based on divergences between discourses. Part IV then examines the joint
liberal assumptions which the different versions of sphere separations nonetheless shared. I
conclude by tying together the historical and critical insights produced through the overall
account of convergence and divergence offered here.
3
I. SEPARATE SPHERES AND THE MARKET
During the course of the eighteenth century, recounts Mary Poovey, emergent domains, like the
economic, were gradually specified as separate from residual domains, like the political, the
theological, and the ethical. These emergent domains did not immediately replace their
predecessors, however, but were mapped onto them in a process that entailed the negotiation and
eventual redrawing of the boundaries between kinds of knowledge, kinds of practice, and kinds of
institutions.5
As Poovey's account suggests, separate spheres denote a compartmentalized view of the
world, a separation of "forms of human association"6 and more generally human experience into
identifiable areas answering to distinct logics and exemplifying typical patterns of relations. Most
familiarly, a separate-spheres view entails a distinction between state, or politics, and civil society
– that is, "public" and "private" life. Within the private sphere, a second separation is between the
economy, or market, and family life (often, and confusingly, discussed through public (market)
and private (home)).
Historians of late western modernity, particularly feminists and market critics, have long
attended to separate spheres both as ideology – as a basic tenet of liberal thought, and as a
sociological reality – as a structural element of the capitalist social order. Max Weber famously
propounded an understanding of the rise of capitalism as an evolutionary story of separation
between family and economic activity.7 The story, with a controversial starting point periodized
to various eras from the thirteenth to the nineteenth centuries,8 describes the shedding of
obligations standing in the way of rationalization. Zygmunt Bauman recounts the basic plotline:
The rise of modern society was a "melting of solids." The dense tissue of social obligations was
undone, leaving "the whole complex network of social relations unstuck." In this process, the
economy was progressively untied from its traditional political, ethical and cultural
entanglements.9
4
Feminist histories often offer similar accounts while emphasizing the emerging role of
the family sphere to which women were largely confined, construed in opposition to the
economic. The story recounts a sharp dichotomy reaching its zenith in the nineteenth century
between the feminine home and the male workaday world. The separated spheres were defined
one against the other, with the home assuming significance for its difference from, and
compensation for, the market, and vice versa.10
The separation of spheres within civil society, variously formulated as market versus
home, economy versus family, exchange versus gift, and so forth, imports with it a basic contrast
in both norms of conduct and structure: rational, calculative, self-interested action, based on
abstract freedom and formal equality in the former, are contrasted with altruistic, fluid,
compassionate action in an often more dependent and hierarchical context, in the latter.
The story of the separation of spheres has been criticized for its descriptive limitations.
Addressing the economic sphere, Marcel Mauss criticized the modern western conception of
economic exchange based on material utility with evidence from "archaic" societies. In those
societies, he argued, the modern conception is nowhere to be found, and the concepts that "it
pleases us to contrast," like liberty and obligation, generosity and self-interest, are in one melting
pot. Modern society too is not as rational as it imagines, Mauss suggested; we too would do well
to put our concepts back into the melting pot.11 Poovey likewise addresses the complexities of the
disaggregation of spheres. The negotiation of sphere boundaries, she argues, was full of fissures
which resulted not only from the uneven relationship between discourse and institutional practice,
but also from the historical indebtedness of spheres to older ones from which they emerge. 12
The following two Parts consider conceptualizations of sphere-separations in contract law
and novels of the nineteenth century. Read together, the account traces divergences between
discursive constructions of spheres. It thus offers a critique of the historical story of separations,
not simply as a sociological reality, but as ideology as well. Classical liberalism did not entail a
single version of the separation and meaning of spheres, or a single version of the market.
5
Classical liberalism, as a set of ideas accommodative of a capitalistic market-based order, could
be read in more than one way, ascribe meaning in more than one way, understand, naturalize, and
structure the multiple phenomena of market society in more than one way.
Today‘s literature on liberalism should allow readers to quickly appreciate the argument.
The last three or four decades have seen mounting literature departing from familiar accounts of
sphere separations. Accounts in various disciplines have underlined relational autonomy, the
centrality of interdependence in conceptualizations of modern economic life, and the complexities
of any account of consent emerging from the embeddedness of practice and utterance in social
contexts. Thus, the complexities in liberalism explored in this paper today should fall on fertile
grounds. Concurrently, today's literature on "varieties of capitalism" addresses multiplicity at the
level of material reality which leaves no room for monolithic ideological accounts; varieties of
capitalism, note, are also acknowledged historically.13
Yet, all of this seems to have little operative relevance in discussions of Victorian
liberalism. The richness of literature on liberalism today is conceptualized as a late historical
critique of an earlier and almost undisputed hegemonic construct. Present and historical
capitalisms do not seem to complicate the historical picture either, perhaps because within units
considered single economies and cultures  like states, any diversity is reduced to a "for" and
"against" formulation. This paper suggests, however, that ―for‖ and ―against‖ accounts of liberal
ideology are no more convincing historically than they are at present days. Liberal ideology
should be disessentialized in historical terms, and law's and literature's positions reconsidered.14
II. CONTRACT LAW15 AND THE MARKET
Classical contract discourse of the nineteenth century – the bedrock of modern contract, and the
heart of private common law, construed sphere separations on two levels. First, classical
discourse relied on a distinction between politics and civil society as two separate spheres of
6
action. The distinction was based upon a clear division between public and private sources of
law-making. On a second level, contract discourse construed separations within civil society,
between market and non-market (yet "private") forms of association: classical contract discourse
assumed and reinforced an existence separated into two opposing yet mutually dependent halves
– a contractual sphere of trade grounded in socially-disembedded economic self-interest, and an
area of family and friendship beyond the reach of contract. Contract law was the law of the
market.
How did contract law generate the separation of spheres? The following discussion
explains the broad conceptual structures of classical contract discourse which grounded sphere
separations, and then discusses one specific, problematic, and especially revealing aspect of
contract thinking: the promise of marriage.
A. The Conceptual Structures of Classical Contract Discourse
Conceptually, the theory of contract was centered on a view of contract as an expression of
individual will, as opposed to the will of the community.
"As every contract derives its effect from the intention of the parties, that intention, as
expressed, or inferred, must be the ground of every decision respecting its operation and extent,
and the grand object of consideration in every question with regard to its construction."16 Such
was Pothier's classical formulation of the will theory of contract, the basis of the common-law
formulation.17 The core of contract law was organized by legal thinkers, explains Duncan
Kennedy, to reflect a set of ideals associated with the distinction between private and public will,
between individual and community: facilitation – as opposed to regulation, self-determination –
as opposed to paternalism, autonomy – as opposed to community, and formality – as opposed to
informality. All of these served to construe the market logic, and its counter-images.
In the organization of contract rules, classical thinkers had to deal with many contract
rules that reflected regulation, paternalism, community and informality. Two doctrinal
7
developments solved the difficulty: the rejection of the ideas of "status," "relation" and
"condition" as operative sources of the great mass of contract rules – as they had been in earlier
eras, and the emergence of a specialized law of persons, and of a new category of status, which
grouped together and explained the peculiar character of rules incompatible with the new vision
of the nature of "real" contracts.18
The distinction between private and public sources of obligations – between contract and
status, was importantly grounded in the centerpiece of contract law – the doctrine of
consideration. The basic question raised by the doctrine was deceptively simple: what promises
will the law of contract enforce? Whatever the answers were, argues Roy Kreitner, the very
question had already succeeded in achieving a crucial conceptual goal: Promise – understood as
an individually-created, self-imposed obligation – became the sole source of contractual duties.19
The realm of exchange was the realm of individual action, from which the community was
excluded.
Another important feature of classical contract was its attention to the formation of
contract over its content. The role of contract law in its classical version was to ensure it enforced
free transactions, not police their content. Rules of formation thus developed in the nineteenth
century, becoming more and more intricate, and judicial review of contractual content tended to
be explained through them. This attention, argues Kreitner, obscured the role of societallyimposed obligations in contractual contexts in favor of individually-chosen obligations.20
Additional features of contract thinking added a second crucial layer to the market image
of contract law, rendering contractual individual action not just private, but rational. One such
feature is the distinction between contract and gift, with gift (or, at the classical period, any
unbargained-for promise), like status, left outside the contractual boundary. While the
nonenforcement of gratuitous promises had a long history in case law, classical thinkers turned it
into "the cornerstone of the contractual edifice." The boundary line traced the lines of rationality:
8
unreciprocated transfers raise the spectre of economically irrational social transactions which the
legal vision of the market denied.21
Another formulation of the manner in which contract discourse generated separate
spheres is the opposition between what Roberto Unger calls principles and counterprinciples.
Classical contract doctrine expressed as one of its dominant principles the freedom to contract, or
to choose one's contractual partners. Doctrinal developments that undermined freedom to contract
in order to protect communal aspects of social life were counterprinciples. Their effect was to
limit the application of freedom to contract in areas in which more complex textures of
reciprocity and dependence required protection.22 The principles and the counterprinciples, then,
relate to background assumptions about different kinds of human association, the former
acknowledging nothing but self-interest, the latter taking into account reciprocal loyalty, support
and dependence. Counterprinciples were understood precisely in their oppositional stance to
principles, and were formulated as mere ad hoc qualifications to them; they were not allowed to
undermine the basic conceptual structure expressed in the dominant principles, but rather worked
from the outside, as it were, to limit their application. Maintaining the dominance of principles as
the essence of contract and treating the areas subjected to counterprinciples as anomalies or
somehow less contractual, grounded the idea of different models of association for different
spheres of life; they reinforced the distinction between the market and the sphere of family and
friendship.
The analytical distinction in legal discourse between societally- and individually-imposed
obligations, between dependence and self-interest – between status and contract, gained impetus
from its convergence with a wider political implication: contract's meaning as "not status" was
part of Victorians' understanding of their historical moment; of the search for an alternative
system to traditional hierarchies which would move individuals from subjection to freedom. 23
Maine's famed proposition on historical progress from status to contract created something like a
frame, placing contract squarely within the structure of nineteenth-century society. Over and
9
above any analytical meaning in his formulation, Maine used contract as a proxy for the refined
(and progressive) essence of nineteenth-century social reality of industrialization and the
market.24 As Dicey explained, the substitution of relations founded on contract for relations
founded on status was for individualists generally the readiest mode of abolishing a whole body
of antiquated institutions.25 Contract, as the par-excellence tool of the market, represented a set of
freely chosen, self-imposed obligations of formally equal individuals, unlike status, representing
obligations imposed without an individual's consent, tied instead to a dependant social position
The conceptual process in contract thought is described by Kennedy as a double
movement, subtracting relations from the picture, then abstracting to find individual will as the
essence of what remained.26
The specific formulation of "free will" which remained at the core of contract after
subtraction and abstraction suffered from apparent logical inconsistencies explicable by the
model's version of the market as a realm of competitive economic rationality. Consider "free": the
will theory received its impetus from the ideal of freedom; the scope of contract was the scope of
freedom for individual self-determination. The classical notion that contract law embodies
freedom was intertwined, however, with the ideal type of the market economy, for it is the state
of perfect competition which protects parties from arbitrary power in one another.27 In any
condition of less than perfect competition, individuals are not perfectly free, not even within the
limited concept of negative freedom. The enforcement of contract was another aspect of
diminished rather than enhanced freedom, a point suppressed under the need to secure market
transactions.28
Now consider "will." Despite the focus on individual will, the model did not attempt to
pinpoint the subjective will of the parties. Instead, classical contract law adopted objectivism,
imputing liability on the basis of objectively-determined manifestations of intention. While, at
first glance, objectivism appears puzzling, departing from the proclaimed commitment to the
parties' will and offering instead a measure of protecting reliance, objectivism was consistent with
10
the conceptual investment in a vision of the market sphere: it was part of contract's formality, and
contributed to the tendencies of abstractionism – or reluctance to concretize and bring into view
the social contexts of rational market actors, and the absoluteness of contractual rights, supporting
contract's compatibility with market prudence.29
B. The Promise of Marriage and Separate Spheres
The promise of marriage is a borderline area, a difficult and hardly paradigmatic aspect of
contractual thinking. Dealing with difficult cases, which threaten the outlook grounded in legal
discourse, is helpful for two reasons. First, the core claim – contract law's commitment to
separate spheres, becomes clearer through the estranging effect of a liminal case. Second, such
cases serve as a reminder that legal discourse was not free from complexities and contradictions; I
trace dominant visions in law, and in the next Part – in novels, without claiming exclusivity or
full coherence for either. I will therefore repeat the same exercise – an analysis of an internal
contradiction, with respect to novels as well.
***
By the time civil marriage was made universal in mid-nineteenth century – apparently a step
toward contractualism, the view of marriage as contract depended on the nominally consensual
aspect involved in choosing a spouse or agreeing to marry. Other than this aspect, from early
nineteenth century the incidents of marriage were largely prescribed by the state.30 Coverture
meant the legal death of married women as contracting parties, itself a doctrine in stark
opposition to the idea of the marriage relation as contract.31 Accordingly, classical writers
excluded marriage from their treatises on the law of contract, defining it as status.32 As a matter of
public debate, the contractual view of marriage was up against a concurrence between the
Christian emphasis on marriage's sacramental quality which united man and woman into one
person, and separate-spheres ideology which combined a denial of gender equality and a concern
11
about the ruthless world of the market from which one had to find shield and at the same time
protect the family.33 Marriage's exclusion from contract law was thus part of contract's alliance
with a separate-spheres outlook.
The promise of marriage, by contrast, was encompassed under general contract law.
Historians disagree on the importance of the contractual framework for the action for breach of
promise. Some, like Patrick Atiyah, view it as significant, a telling sign of the triumph of the
classical model of contract.34 Susie Steinbach argues that the promise of marriage, its rise and
fall, can make little sense outside the contractual ideology of contract.35 Others, like Ginger Frost
and Saskia Lettmaier, view status-based questions of class and gender as paramount here, and
tend to dismiss the contractual framing as thin cover, if not total misfit, little helpful in
explicating the fortunes of the promise of marriage.36
The promise of marriage was indeed a conceptually difficult area for contract discourse,
and not only because it complicated abstractions usually applied to market contexts. The inherent
contradiction between the will – which was here linked with the ideal of unencumbered love –
and the coercion involved in holding promisors to their promises was particularly difficult to
square at the rhetorical level. In terms of contract discourse, the promise of marriage is thus an
easy target for critique.37
And yet, the promise of marriage is not simply a site which undermines the discourse's
framework. Despite its problematics, there is a conspicuous point which illuminates law's
commitment to separate spheres. The point is precisely the dividing line between contract and
non-contract: the distinction between betrothal and marriage. Contractual rights generated by the
promise of marriage applied to the period of betrothal; the action for breach of promise of
marriage reinforced the fact exemplified in the legal structure of marriage itself: contract stopped
at the threshold of the family.
Why stop after betrothal and not before? Why enter this conceptually difficult zone?
Perhaps this point too can be answered within the same framework. The search for a husband was
12
for Victorian women their most important, and often exclusive, economic career, and the period
of betrothal represented the highest point of risky investment.38 Economic hazards to women
from broken engagements lay at the basis of the action for breach of promise; these economic
meanings were closely, and perhaps not merely coincidentally, linked with the classical view of
contract. In enforcing promises of marriage within the framework of general contract, law
recognized women as economic agents, if for a limited scope and purpose, perhaps even the
counterintuitive purpose of moving women into coverture, and reinforcing their dependent nature.
We see here a complex phenomenon: contract thought observed a fragile line between the
imperialistic tendency of the will theory to bring under its wings a wide variety of abstracted
relationships, and separate-spheres outlook which required that only relationships answering to
market rationality would enter the contractual zone. The prolonged controversy over the action
for breach of promise clarifies how nontrivial the line indeed was, with opponents voicing the
intuition that the contractual framework was inappropriate for the familial context of marriage
promises.39
In the distinction between the promise of marriage and marriage itself the two levels of
separation of spheres converged: the separation between the family (marriage) and the market
(promise of marriage) became a reflection of the separation between the state (marriage as status)
and civil society (promise of marriage as contract).
***
Contract discourse substantiated a rigorous version of the separation of spheres. The first level of
separation – that between public and private spheres, created the market as a free realm. The
second level of the separation of spheres – that between market and non-market private
relationships, injected specific content into market interaction. Having marginalized relations
which were not individually chosen and shaped, contract law decentered relations not adhering to
a strict rationality and rigid allocation of rights and duties, constituting the market as a
13
competition among rational economic agents who owe one another nothing beyond their chosen
contracts.40
III. NOVELS AND THE MARKET
"The society and the novels – our general names for those myriad and related primary activities –
came from a pressing and varied experience which was not yet history; which had no new forms,
no significant moments, until these were made and given by direct human actions."41
Like contract law, nineteenth-century novels were negotiating a complex relationship
between is and ought, between real and invented, between constraints and possibilities in an era
of change, which required new forms, new conceptualizations, direct human action which would
create them, and, by the same token, make a world which was not yet history.
Unsurprisingly, therefore, novelistic representations of market society have attracted
critical attention as often as the legal one. Criticisms seem to line with expectations of common
hegemonic assumptions in law and literature, for they often relate novels to the shift to classical
liberalism. The best-known reference is probably Ian Watt who explained the rise of the realist
novel against the economic, political and ideological rise of individualism, in which, Watt noted,
the idea of contract was central.42 Analyses have confirmed and reconfirmed the relation from
various directions in a series of claims about the Victorian novel as supporter of bourgeoisie
ideology, as the par excellence middle class art, or, beyond class relations, generally as
naturalizer of a capitalistic social order and promoter of individualistic values, at times discussing
novels and law together.43
Specific arguments on novels' relation to separate-spheres thinking likewise abound.
Catherine Gallagher, for example, argues that the association of public and private in realist
novels depends on an underlying assumption that the two are separate.44 Franco Moretti, to take
another example, reads links between professional and family life established in George Eliot's
Middlemarch (discussed below) as confirming the Weberian paradigm which opposes "vocation"
14
as a depersonalized sphere to "everyday life", maintaining that one must be sacrificed to the
other.45
And there are, of course, readings pointing the other way, those questioning novels'
commitment to the separation of spheres. 46
How do these readings hold when examined against contract law's version of separate
spheres? To what extent does the construction of market, of economic rationality and trade in
novels share the same consciousness of human experience found in legal discourse? The question
seems worth asking not least because novels, like law, were virtually obsessed with the new
world of commerce, identifying contract as a human endeavor central to their emergent society.
Contract was for novels, no less than law, a conceptual tool for delineating social relations as
historical frameworks responsible for that task – feudalism, religion – wore down. Stories of
promises, debts, and exchanges of all sorts pervade novelistic pages, functioning as both frames
and content for representations of economic relations.
A. The Single Arena
Melmotte listened . . . in the course of the debate . . . a question arose about the
value of money, of exchange, and of the conversion of shillings into francs and
dollars. About this Melmotte really did know something . . . . It seemed to him
that a gentleman whom he knew very well in the City – and who had maliciously
stayed away from his dinner – one Mr Brown . . . understood nothing at all of
what he was saying . . . . [A] statement had been made . . . containing, as
Melmotte thought, a fundamental error in finance; and he longed to set the matter
right. At any rate, he desired to show the House that Mr Brown did not know
what he was talking about – because Mr Brown had not come to his dinner (The
Way We Live Now 529-30). 47
Augustus Melmotte, Trollope's deservedly-famed corrupt financier, thus decides to make a
speech at his first appearance in the House of Commons, the highest point of his career. The
attempt ends embarrassingly. Melmotte's courage slips away under the intimidating presence of
statesmen and House members; he is further cowed when corrected with regard to formal forms
of address in the House, and loses the gist of his argument.
15
The episode captures the inability of an economic concept to enter social interaction in
pure form. What begins as a supposed "error in finance," attributable to no one but "commercial
gentlemen" subject to their specialized "crazes" (530), ends in the complex space figured in the
representative system of parliament. Here the pure concept becomes something worth talking
about because it interacts with those subject to other crazes, with social injuries, with social
hierarchy and with social rules of conduct. While the content of the pure financial argument is
lost, its meaning is established. We have here an almost physical image of a concept moving from
the land of ideas to the land of social people, and changing its basic quality as it does.
***
This Part exemplifies how Victorian novels represent commercial activity and economic contexts,
establishing their importance precisely in the social forms they assume. "Single arena" is the term
I use to explain these representations.
Single arena denotes a novelistic interpretive structure – a way to attribute significance.
Novels pull diverse strands of experience and activity: friendship and enmity, romance, family,
commerce, religious practice, art, science, politics, and what not, and give them all meaning –
significance – as interdependent social transactions of insistently relational persons within a
single social world construed by and in the novel. In pulling multiple strands together and
understanding them as interdependent social transactions, novels undermine the notion of
separate spheres answering to distinct logics. They replace the consciousness of discontinuity – of
boundaries between the spheres which make up the social world, with a consciousness of
continuity – of porous and incoherent boundaries between loosely differentiated spheres of
activity which all succumb to a governing social logic.
The single arena implies that relationships in different spheres, like those in the family or
the market, do not ultimately rely on different logics. In particular, the market rarely runs on
economic motive alone. The overarching logic of spheres of human action, whatever their
16
function, is the broad category of the social, in which persons act out their insistently social
attributes. This point is represented not only in direct accounts of human motivations, but also
formally. One aspect of the formal representation of the single arena is structural parallelisms
between different spheres which work to underline a common social logic. Another formal
representation is a juxtaposition of either similar economic positions only to treat them
differently, or a juxtaposition of different economic positions only to treat them similarly, in both
cases through some form of a social logic which governs in lieu of the economic.
The single arena also implies that spheres are not closed systems but interdependent ones.
Interdependence relies not simply on spheres' conceptual place as parts of a whole (a notion
informing separate-spheres thinking in law), but on continual, mundane connections: on
representations of minute and multiple causal chains cutting across sphere boundaries – to which
I refer as floating causality.48
As a result of the overarching social logic on which various spheres are run, and of the
interdependence between spheres, the dividing lines between them are inherently blurry.
B. An Embedded Economy
The single arena is not a view we might label, perhaps sentimentally, premodern. Differentiations
between spheres of human activity, both rhetorical and functional, are evident everywhere, hence
single arena, not single sphere. Indeed, the social embeddedness of the economy in novels begins
with the fact of differentiation.
[T]he curious double strands in Farfrae‘s thread of life – the commercial and the
romantic – were very distinct at times. Like the colours in a variegated cord those
contrasts could be seen intertwisted, yet not mingling (The Mayor of
Casterbridge 183). 49
Donald Farfrae, the modern man of an ascending commercial world in Thomas Hardy's The
Mayor of Casterbridge, is an apt character for clarifying the meaning of the single arena in
17
economic relations. Farfrae's severance from his beloved homeland while successfully pursuing
his business sharpens the sense of differentiation between spheres in the new world of commerce.
Farfrae's world it not undifferentiated; rather, its power lies in the representation of intertwined
(or, as the novel would have it, "intertwisted") – yet not merged (or "mingling") – spheres. While
they do not become one, the different spheres of The Mayor of Casterbridge's world always exert
influence on one another; expose multiple interconnections; their rationalities never ultimately
distinct, though their formal functions are.
"Intertwisted" spheres can work well, as with Farfrae, or can take the reverse course, as
with the tragic antihero of the novel – Michael Henchard. The mirror imaging of these two
characters – the one ascending and the other descending – across commerce, romance, family,
and public office (mayorship), relies on The Mayor of Casterbridge's commitment to the single
arena, to the "intertwisting" of spheres.
Henchard's bankruptcy – part of the plot of Henchanrd's downfall, is one instance
representing the distortions of a separate-spheres point of view. In the novel's bankruptcy scene
creditors assess the situation. The bankruptcy, they all concede, was brought about by a rashness
of dealing without bad intent; Henchard, they think, had been fair. Yet, bad intent was there.
There was bad intent directed towards Farfrae whom Henchard jealously sought to ruin until he
himself was ruined. Henchard was also willing to cheat creditors: Rather than repay them by
accepting a loan from his rich ex-lover Lucetta, Henchard asks her to pretend to be his fiancé and
ease creditor pressure. Henchard will not take a business loan from a woman in a symbolic denial
of the mixture between market and home, or male and female spheres, a denial which speaks
foremost to its inversion: whether a woman enters the market formally as lender or remains put as
wife-to-be, she is involved in the business. Henchard, as customary with him, chooses the wrong
path and is unable to avoid bankruptcy. To understand the bankruptcy, however, his proceedings
must be read contextually. The distorted impression of creditors problematizes the idea of
removing business promissory relations away from their social and personal entanglements. The
18
strands are not separable. Separation is distorting, note, not because it creates a partial picture, but
because it creates a wholly different picture of the economy. The Mayor of Casterbridge offers
the market sphere as a specific form of responding to social concerns, not their subordination to
economic motives, all the less their denial.50
Chains of floating causality are equally at work in The Way We Live Now, with which we
began. In the rise and fall of Melmotte – the central plotline in the novel, every business
transaction, and every social, religious, and familial connection are linked with the search for
social recognition. The search for social recognition arises in risky debt, which drives the transfer
of funds within the Melmotte family – from father to daughter, which becomes substantialpersonal rather than technical-businesslike when the daughter – Marie, takes a stand of her own
driven by Melmotte's opposition to her chosen marriage; this in turn complicates Melmotte's
ability to evade the Sussex contract trouble in which he attempts to purchase land, which joins
and secures share collapses, betrothal collapses, and the domino effect continues. The text lets
floating causality float very freely, problematizing separate-spheres thinking.
The social blurring of lines between economic and non-economic relations is the
background assumption allowing Ruth¸ Elizabeth Gaskell's 1853 story of a fallen woman, to
substantiate its call for compassion across spheres.
Orphaned Ruth‘s guardian is the flourishing maltster of Skelton, a "sensible, hard-headed
man of the world; having a very fair proportion of conscience as consciences go; indeed, perhaps
more than many people; for he has some ideas of duty extending to the circle beyond his own
family" (8).51 When Ruth's father dies, the guardian is surprised at being appointed executor to a
will and guardian to a girl he could not remember, but he "did not, as some would have done,
decline acting altogether, but speedily summoned the creditors, examined into the accounts . . .
and discharged all the debts," and, under the same sense of duty he
paid about £80 into the Skelton bank for a week, while he inquired for a situation
or apprenticeship of some kind for poor heart-broken Ruth; heard of Mrs
19
Mason‘s [dressmaker], arranged all with her in two short conversations; drove
over for Ruth in his gig; waited while she and the old servant packed up her
clothes, and grew very impatient while she ran, with her eyes streaming with
tears, round the garden, tearing off in a passion of love whole boughs of favourite
China and damask roses . . . (38).
Thus Ruth is placed in her new solitary life, from which the story of fall, and then martyrdom-like
rise, flows.
The text points to a troubling parallelism between Ruth and her father's debts, both
handled by the guardian using an efficient and emotionally impoverished standard. The episode is
set up to clarify the origins and problematics of this standard.
The guardian‘s name is never mentioned, in line with his personal remoteness from the
task. His sensibility implies impatience when one of his objects (accidentally, Ruth) exhibits
emotional responses inconsistent with his idea of the job. His impatience is followed by his
lectures on "economy and self-reliance" (38), from which Ruth is little able to "profit," being
grief-stricken.
The story is amplified through formal presentation. The narrator describes the guardian‘s
actions in one long sentence lumping together actions relating to assets, debts and a young
person, and showing them all to be part of one to-do-list, satisfactorily performed. The part of the
list dealing with Ruth begins with one clause between two semicolons: "; paid about £80 . . .
while he inquired for a situation . . . for poor heart-broken Ruth;". In this single unit we see the
same parallelism suggested by the whole structure: £80 in the bank are juxtaposed against Ruth in
her despair. This is the only mention of an amount, boldly attaching monetary value to Ruth
which defines her future options, and the rest of the novel.
The guardian episode consists of only two paragraphs, the first beginning with the
creditors, and the second already continuing into the first night at the dressmaker‘s house. The
mismatch between form and content: a brief episode and a huge crisis, textually performs Ruth's
social neglect. This structure also creates a formal and technical connection between the debts
20
(opening paragraph) and Ruth‘s personal fortunes (closing paragraph), duplicating the guardian‘s
treatment.
The critique of commodification informing this episode is familiar enough. It enables
Ruth to seek "justice, tempered with mercy and considerations" (240) across spheres, commerce
included. The underlying world view driving the critique, however, is perhaps less than obvious:
Ruth does not depict moments of "market" intrusion upon non-market safe havens. It construes an
inextricably mixed world, in which supposedly anonymous "market" transactions, like the late
father's debts, are always entangled in affective relations and symbolic meanings; a world
experienced through the points of overlap and floating causality between different activities; that
is, through the single-arena consciousness.
Single-arena representations in Dickens' 1853 Bleak House rely on a moral economy of
interdependence. Bleak House represents its world as an intricate web of interdependencies
gradually expanding to encompass an entire society. A controlling image emerging from this
conception is an opposition between far and near-reaching: Bleak House allocates blame and
praise according to personal and institutional abilities to respond to immediate realities.52
Within this moral framework, the novel represents formally parallel economic agents
who nonetheless attract different moral evaluations, and formally different economic agents who
occupy morally parallel positions, submerging economic contractual logic under social concerns
governing the evaluation of human activity in the text.
Take two similarly failing debtors: Harold Skimpole and Mr George. Both characters are
of little economic means, and accrue unpayable debts which lead in the novel to expanding
misery. Yet, Skimpole is derided, while George applauded. Why? Because every economic
transaction in Bleak House depends for its evaluation on the location of actors within the moral
economy of interdependence. To underline this outlook, Bleak House contains careful narrations
of similar economic situations, encouraging an active search of the terms of difference.
21
The infamous Skimpole presents a process of increasing distance from material reality as
a successful culmination: In a series of rigorous logical absurdities he suggests that in being
required to repay debts he is asked for something which is really nothing (money as "bits of metal
or thin paper"); he intends to give it, but he does not have it; and so he should be rationally
lawsuit-proof (240-41).53 A set of denials of the relation between representation and reality –
money representing real value, intention referring to real objects, rationality representing real
people who want real things – points back to Skimpole's ego as a sole reality, leaving his multiple
creditors empty-handed.
Mr George is praiseworthy for, despite similar failures to pay, he reverses Skimpole's
abstractions. George's externality, contrasted to Skimpole's, indicates his hands-on approach:
George is in touch with life, his sunburnt face and arms having "been used to a pretty rough life"
(341), as the abstracted Skimpole is delicate and generally looks younger than his age (89); while
Skimpole‘s movement is light and bright, George‘s "step too is measured and heavy" (341).
George is almost physically attached to the ground he walks, his immediate environment leaves
physical marks on his body: a figurative image of near-reaching. Being an involved character,
George not only intends to pay, he ties (unseccussful) repayment to his personal efforts. The
money he owes is likewise recognized as contextualized value: something that could make him
"steady" in life; something that makes him fragile vis-à-vis his creditor Smallweed; something on
which his guarantors' wellbeing depends.
Compare George's and Skimpole's representations as two poor debtors to the treatment of
two different positions within contract: a poor debtor and a rich creditor. Here, despite obvious
differences, we find a similar moral evaluation. George's lender – Smallweed, turns out to be
analogous to Skimpole. While Skimpole rhetorically denies the value of the money he borrows,
representing himself as having "no idea of money" (90), Smallweed denies the value of anything
but the money he is owed – he never goes out nor occupies himself in any way, denying the value
of literature, music or any other interest, in an apparent contradiction to the hedonistic artist
22
Skimpole. Yet Smallweed's consuming interest in the "God" of "Compound Interest" (333) is a
disturbing estrangement from concrete realities essentially alike Skimpole's dismissal of "bits of
metal and thin paper." Neither anti-materialism nor materialism worked pure is satisfying for
Bleak House. Both fail, from the two sides of economic transactions, to acknowledge credit's
relation to the complexities of life, without which it becomes a form of danger.
Bleak House's interest in a contextualized assessment of relational actors allows for
distinctions between similarly failing debtors like Skimpole and George, and similarities between
apparently contrasted positions like Skimpole the debtor and Smallweed the creditor. The form
encourages a social reading of economic relations, allowing a moral framework to govern and
embed monetary transactions.
To conclude this brief tour in novels, consider George Eliot's celebrated Middlemarch.54
Individual protagonists in this novel repeatedly encounter a non-accommodating reality – both of
other individuals and of communities, to which they unhappily adjust, a focus which has won
Middlemarch its association with classical liberalism. Three central stories, those of Fred Vincy,
Tertius Lydgate, and Dorothea Brook, rely on promissory tales to bring into focus the self/other,
individual/social encounter and follow its track. With Fred and Lydgate, the promise is a loan
contract, while with Dorothea it is her husband's death-bed wish for an open-ended declaration of
loyalty. These promises are differentiated along a number of lines: market vs. family, men vs.
woman, made vs. never made, reciprocated vs. unreciprocated, legally enforceabile vs.
unenforceable. However, joint significance is infused into these stories through the common
function of the promises within the self/other, ideal/real tensions explored in the novel.
Representations of promissory relations allow, once more, a replacement of discontinuities and
oppositions between spheres with continuities reliant on a governing social logic. The promises'
joint significance renders the conceptual distinctions between them secondary in importance, not
to say disinformative.
23
What to make, then, of claims to the contrary, like Moretti's argument about
Middlemarch?55 Both interpretive arguments – "single arena" and "separate spheres" – proceed
from the observation that novels deal with a multiplicity of spheres which appear intertwined,
open to multidirectional influence, and subject to common thematic concerns. In privileging the
single-arena reading I insist that these representations of complexity, intertwining and
interconnections, both in form and content, are part of the meaning of spheres in novels, rather
than noise one can relegate to a peripheral position. It is precisely here that literary discourse
actively and forcefully constructs a picture of human existence importantly different from the
legal one, itself achieved with no little effort.
***
The single arena in the representation of economic relations achieves, in Jeffrey Franklin's terms,
a subsumption of all spheres.56 Novelistic representations of commerce, business, or the
"economic," do not produce an ideologically oppositional space to the legal one. Instead, they
acknowledge the relevance of materialism, economic gain, and market exchange, but insist on
tying these with sets of motives and causal chains which return to the social.
C. Single Arena or Separate Spheres?
In my discussion of contract law, the promise of marriage served as a grey area bringing law's
conceptual structures into focus. In this Section I turn to a grey moment in literature, again under
the conviction that by observing liminal cases we learn a lot about a category of thinking, perhaps
much more than we can learn by observing its paradigmatic core, its easy cases.
The following discussion clarifies in what sense The Way We Live Now grounds
discontinuous, strictly separate spheres, despite its forceful representations of a single-arena
world.
24
In The Way We Live Now, the terms of trade are portrayed through a story of a public
railway company, used by Melmotte and the American Fisker to raise public funding.
The railway plot is informed by the single-arena outlook. The text obscures the economic
aspects of the story to which the reader is first introduced (no paid-up capital, a potentially
unnecessary railway that may never be built, and questionable share allocations); these aspects
become an unresolved question. The logic of railway share trade, having been obscured, is then
dislocatingly elaborated through a story of trade in dinner tickets for Melmotte‘s party; the ticket
exchange functions as a mock market trading in social desires and turning on the social faith in
Melmotte.
In dislocating railway share trade to the trade in dinner tickets, The Way We Live Now
narrates only what can be easily narrated in terms of English sociality, turning the spotlight onto
the behavior of the investing public interested in English social capital available at the dinner
event: mixing with social superiors, laying eyes on symbols of English society, appropriating
English inherited land (the heart of Melmotte's rise and fall). This formal dislocation underlines
the social meaning of trade in England.
And yet, there is a sense in which separate-spheres thinking pervades the text. The
narrative emphasis in the railway plot is on Melmotte, and his problem is that he does not really
represent an economic logic, nor the beneficent impartiality which the public expects to see once
economic need is satisfied (337). Melmotte is overcome by his passion for social glory, and his
public projects are likewise figuratively succumbed to his transactions in land – a quintessentially
English social capital. The investing public, like the corporation‘s directors, obey rules of social
interaction while turning their gaze away from the business. Put simply, The Way We Live Now
narrates a failure to create a rational economic sphere in England.
Yet economic rationality is not entirely unrealized; The Way We Live Now has relegated
it to the other side of the ocean; alas, with no better results. The rationality of the Americans in
the novel goes hand in hand with dishonesty; their pursuit of economic goals, without social
25
constraints and prejudices, with openness and daring, is immediately linked with lies. Given this
coupling of economic rationality with falsity, what The Way We Live Now seems to offer is not a
choice between rationality and sociality, but something else. The textual effect is to enhance
awareness of the manner in which real world commerce can diverge from the ideal concept.
Recall the opening quotation in which a financial concept changes its shape in parliament.
The absence of a pure economic logic here becomes an issue, a thing considered more
consciously as absence. This awareness turns absence into presence. Whether the absence is to be
regretted or not is less important than making it a fact to be noticed. In ideological terms, this is a
moment that should be captured when we seek to understand how a separate-spheres
consciousness becomes so convincing; how a text representing nothing but the single arena
contains a grain which could become a source of meaning, as it was in Victorian legal discourse,
and as it has remained for historians of the era.
IV. CONTRACT LAW, NOVELS, AND JOINT LIBERAL ANXIETIES
In grey areas the differences between separate spheres in law, and single arena in novels, are
blurred. From these grey moments one can turn to central commonalities between the outlooks of
nineteenth-century contract law and novels.
Both the legal tendency towards separate-spheres, and the novelistic tendency towards a
single-arena consciousness, have this in common: an anxious need to make sense of the social
division of labor – of a functionally differentiated capitalist world.57 Both separate spheres
grounded in contract law, and the single arena grounded in novels, assume and take for granted
that society is made up of multiple and varied functional domains, important among them the
economic; that humans go through life, and in fact through everyday, by moving among those
domains; and that to make sense of human experience the meaning and relations of domains to
one another must be reckoned with. Functional differentiation, in other words, is both assumed as
26
a fact and attributed normative importance under the two outlooks: separate spheres and single
arena.
One need only return to familiar stories of the rise of modern society, to Weber 58 or
Durkheim,59 to see that the imagination of society through functional differentiation is a major
conceptual lens through which to capture a capitalist world. Indeed, the need to make sense of
functional differentiation – to explain and shape the relations between domains of human
existence, is an elementary part of liberalism of whatever variety; we might view this as the
minimal commitment on the basis of which we can begin to articulate varieties of the kind
explored in this paper.
Why is attention to functional differentiation so important for liberal thought? For at least
two reasons. First, liberalism, in every variety, is a world-view in which human existence is
normatively ordered by imagining not just individuals, but the relations between individuals and
society, coupled with an assumption that individuals' relation to society are multifaceted and
variable, rather than holistic and predetermined. The latter assumption requires that society be
imagined as varied, and in ways which do not import status-like determinations of individual
positions. Reckoning with functional differentiation is part of the process of imagining a society
on such terms. Second, and related to the first point, the emphasis on multifaceted relations of
individuals to society historically required a normative shift toward the affirmation of ordinary
life.60 Reckoning with functional differentiations in society is part of the emphasis on the
everyday and the ordinary.
From the centrality of functional differentiation in everyday life, note, arise joint
assumptions in law and novels about multiple human motives; law and novels differed not so
much in their account of imaginable motives as in their dominant stories about where, when, and
how those motives might play out.61
***
27
It is perhaps easiest to sense the centrality of the social division of labor to liberally-trained minds
by observing its absence. For this third and final exercise in estrangement, consider Emily
Bronte's 1847 novel, Wuthering Heights.
Wuthering Heights narrates stories of violent passion and destruction among the residents
of two households: Wuthering Heights and Thrushcross Grange. Readers observing the centrality
of homes in the novel have often sought to explain Wuthering Heights' relation to separatespheres thinking. Here some argue that the novel offers a critique: Wuthering Heights, it has been
said, undermines the assumptions perpetuated by separate-spheres ideology about the home as a
benevolent safe haven, by exposing patriarchal violence.62 This is the kind of argument in which
literature becomes a form of resistance, a counter-narrative to hegemonic stories.
But the fictional homes of Wuthering Heights, particularly the Heights itself, are not
some purified essence of the patriarchal power structure of the Victorian home, a point which
becomes clear if we note, for instance, the powerful women there and their complex, sometimes
circular relations to men, or the men making the home the absolute center of their lives. If
Wuthering Heights undermines separate-spheres thinking, it is because the novel radically
defamiliarizes the ideology's basic structure of thought, namely, the idea of a functionallydifferentiated world. To take the Heights as a representation of the home or private sphere, one
must assume such a differentiated world. Wuthering Heights resists precisely this idea. The
unfamiliar quality of the novel, the darkness surrounding its tale, is achieved through the
estrangement of the social as an all-encompassing reality. The text relegates the social idea to a
distant, threatening position, and with it the idea of functional differentiation.
How is functional differentiation estranged in Wuthering Heights? Diversity of human
activity is kept at a minimum, with scanty or no description, and at an irreducible distance from
the novel's scenes. Wuthering Heights does not think about the home as one sphere in a more
complex world; it denies the relevance and bans discourse concerning other activities, while
turning the home into an entire world. Characters in Wuthering Heights live with a view inwards
28
– into the house as a consuming interest and sole reality, rather than outwards – from the house
towards an ever-expanding vision of a diversified social world, as characters do in many other
novels. Social diversity, and functional differentiation, are simply irrelevant to the construction of
the Heights' world.
Consider the figurative place of Gimmerton – a village in the vicinity of the two estates
depicted in the novel. Gimmerton is represented as a site of diverse social activity: characters go
there and back, transact business, obtain information, travel. And yet, Gimmerton is remote. Its
irreducible conceptual distance – despite its nearby geographical one, is marked by the utter lack
of description of the village. Accounts of landscape, both natural and man-made, are central in
Wuthering Heights, but Gimmerton is never allowed to enter through the concretizing visual
sensory so integral to the novel.
Representations of commerce remain aloof throughout Wuthering Heights with the rest of
the social idea. It is only at the close of the novel, when the social narrator of the tale –
Lockwood, gains the upper-hand, that we suddenly encounter explicit imagery of commercial
dealings with the social world, represented in the servant Joseph's "dirty bank notes" (305),63 and
finally a gold coin contemptuously thrown at his feet by Lockwood. Up to this point, transactions
sealed by social institutions, despite their centrality to the plot (think of Heathcliff's property
rights), had been inner-looking both in terms of characters and subject matter, centered on the
Heights and Grange and their residents, and kept the idea of the "busy world" (247) at bay.
There is no functional multiplicity in the world of the Heights from which we might
begin to think of continuous or discontinuous spheres of action. This estrangement of the social
division of labor serves as a reminder of its ubiquity elsewhere, in contract law as in many
Victorian novels.
***
29
The assumption of, and anxiety about, functional differentiation, is part of contract law's and
novels' liberalism, their joint acceptance of specific attributes of the world as central for sensemaking processes in which they both engaged.
Law and novels‘ common liberalism, focused on the capitalist division of labor, has been
fundamental enough to drive historical analyses, which have perfected the common focus into a
separate-spheres argument, with too little attempt to tell apart the two conceptual commitments
involved here: the commitment to make sense of the capitalist division of labor was not
necessarily a commitment to separate spheres. While in law the two commitments were
entangled, in novels the focus on the division of labor emerged in a single-arena outlook. This
outlook was not an opposition to liberalism, but a different way of answering its key questions; a
different way of putting liberalism to work. The centrality of functional differentiation, with its
emphasis on the everyday and the ordinary, on multiplicity and variability, should not obscure the
varieties of liberalism which could, and did, arise from it.
CONCLUSION
The overall picture of nineteenth-century law and novels is one of joint (liberal) questions, and
different (liberal) answers. Law and novels both sought ways to represent the capitalist division
of labor, to make sense of, and render central, the functional differentiation between commerce,
family, religious practice, politics and other domains, none of which alone could dominate human
experience, each of which was felt to have a place, diminishing or expanding, in a new world in
which individual existence was the focal point, and was to be conceptualized without metaphysics
or birth rights, through relational formulations vis-à-vis a varied social.
Legal discourse represented the capitalist division of labor through spheres answering to
distinct and closed logics, among them the market as a sphere governed by economically rational
exchange among self-interested agents. Novels, at the same time, construed a different liberal
worldview, one of an interconnected world of porous, socially-embedded spheres, with the
30
market as a domain of economic activity driven by social concerns and motives, and entangled in
relational settings.
If we start out with the view of law and literature as mutually supportive discourses of the
liberal hegemony, the view must be modified to acknowledge that liberalism does not have, and
never had, one essential content, and that liberal notions like separate spheres must be
disessentialized in historical accounts of the nineteenth century, their alternative meanings
brought to the open.
If we start out with the view of law and literature as oppositional discourses, and rely on
literature as a vantage point for critique of law's liberalism, the view must be modified to
acknowledge that the dividing lines are not quite the ones we have come to know. The mutual
entanglement of law and literature is more intricate than that. While the novelistic outlook on
sphere separations often emerges, or often can emerge, in normative visions distinct from the
dominant ones found in law, we cannot do these visions justice along the familiar law/literature
oppositions. Novels of the nineteenth century were liberally-minded, their outlook neither
necessarily benevolent nor anti-materialistic; novels did not offer simply a critique of Victorian
liberalism a-la contract law; they formulated it differently.
Readings of common ideological currents in law and literature, like readings of
oppositional stances toward hegemonic ideologies, risk wronging historical insight on two levels.
First, they risk telling only half the story about law, literature and the relation between them,
underplaying either important differences between historical discourses, or important
commonalities.
Second, and more importantly, both poles of the polarized framework of analysis in fact
serve a single historical narrative: that of ideology, particularly classical liberalism, as a single
essential entity, which one could either support or oppose. But liberalism was in fact a variety.
One can safely speculate that, if asked, interdisciplinary historians would identify
differences or commonalities between Victorian law and literature (or other liberal discourses)
31
existing at the margins of their accounts, which could be given more consideration (whether of
the variety explored in this paper, or otherwise). Why, then, have these been kept at the margins?
The forces driving polarized analyses are multi-faceted. I note three kinds as a manner of opening
up further discussion. One has to do with the anxieties of interdisciplinarity; another with the
salience of diachronic developments; a third with the attraction of binarisms.
The polarized framework of historical analyses seems to emerge, at least partly, from a
scholarly need to provide implicit justification for the crossing of disciplines. Within legal
studies, listeners surely accept with more ease a turn to still-disregarded discourses like literature
if one can show that these were in fact a source of support or even inspiration for law‘s
hegemonic effort. Listeners likewise accept with ease the turn to literature if it can be used to
articulate historical critiques that law was facing, and effacing. The more complex stories, which
are neither clear convergence nor divergence, neither hegemony nor its opposition, require a lot
more effort to gain a hearing.
Disciplinary forces join with a common historical sense. When one looks back at
twentieth-century developments, some of the market critics‘ worst predictions about market
alienation seem to have materialized. Marx certainly seems in retrospect to have been, in some of
his moments, prophetic. At the level of theory, stories affirming a separate-spheres view of the
market as an ideal realm of disembedded economic rationality have gained dominance, as evident
in the centrality of economic analysis in legal scholarship. Theoretical divergences from the
rational actor model have been conceptualized in terms of deviation from that ideal, preserving
the ideal‘s centrality as reference point for market-theory debates. And so, the version of
liberalism embedded in the story of Victorian separate spheres resonates with powerful
experiences of later developments – material, emotional, and theoretical. Analyses converging on
this version – whether to tell a story of support or resistance, implicitly reconcile later historical
developments to nineteenth-century ones.
32
A second effect of diachronic change is backward-looking and implicates, it seems,
primarily stories of commonality. Law and literature analyses are at once synchronic and
diachronic. They engage Victorian discourses vis-à-vis one another on a synchronic plane, but
also engage both vis-à-vis a past. An assumed common past (say, the feudal world, the ancien`
regime of credit etc.) functions as a touchstone against which the synchronic plane is illuminated.
A felt break with the past in both law and literature thus underwrites the story of commonality, of
a new liberal hegemony. Read against the past, the nuance of synchronic difference, especially
difference falling short of ideological antagonism, gets lost.
Finally, the single arena is, metaphorically, a picture of all spheres painted grey, rather
than black and white. The single arena outlook accepts functional differentiations – it is a single
arena, not a single sphere; at the same time, however, this outlook blurs the boundaries of
spheres, represents actors in the market and elsewhere as persons embedded in relational settings,
and converges the meaning of experience around common social concerns. The single arena,
unlike a separate-spheres outlook, does not fall neatly into binaries informing western thought,
between emotionality and rationality, between other- and self-regarding, between social and
economic ties, or what have you. Not only are we used to binaries; they are also attractive for the
conceptual clarity they enable. It is just possible, therefore, that we intuitively seek to make sense
of the world through binaries. My argument, however, is that binarism comes with a price; it
deflects understanding as well as critique.
The picture of nineteenth-century liberal thought was more complex than current
accounts suggest; it requires letting go of some binarisms, and acknowledging a history of a
varieties of liberalism.
The varieties of liberalism account is not an assertion of complexity for its own sake.
Complexity is not, in itself, a normative end of historical analysis (though it is very often how it
ends). But complexity can have normative content beyond basic historical accuracy. From a
broadly ethical perspective, once the Victorian varieties of liberalism are acknowledged, any
33
particular liberal outlook, as well as any particular set of liberal social arrangements which come
down to us from the nineteenth century, must be evaluated vis-à-vis other liberal alternatives
available at the era. The standard story of the nineteenth century, certainly for legal scholars, has
been one in which the era‘s liberalism is evaluated and understood vis-à-vis the ideological
antagonists of status and collectivism.64 These evaluations evade the more difficult choices within
liberalism, too readily assuming that liberalism was a single idea.
The complexity of the Victorian varieties of liberalism also carries a straight-forward
implication for political critique. At the level of political critique, both poles of existing analyses
– law and literature as mutually supportive or as oppositional discourses – aim to produce
critiques of liberalism, yet risk undermining their own projects. For one, if the historical narrative
is partial, it might leave too much unexplained to have all the critical bite it could have. More
troublingly, when it is successful, the critique establishes what it was erected to attack – an
essential idea of liberalism, which might never have had all the historical hegemonic force the
critique allows for.
The complexity involved in the varieties of liberalism checks against the essentializing
and hegemonizing effect of existing history. It offers a political critique by questioning the
hegemonic position of any specific liberal variety – and particularly the story of separate spheres.
The point is not that there was opposition to separate-spheres thinking, but more simply, and
fundamentally, that liberal thought did not commit to it.
Most broadly, the critical impulse behind much interdisciplinary work is often not simply
the object of critique (as, here, classical liberalism), but the borders of disciplinarity itself. In
legal studies, the object is often a reopening of legal stories through an engagement with
disregarded discourses like literature.65 But, if the readings emerging from such reopening end up
either polarizing discourses or denying the differences which emerge from historical disciplinary
boundaries, they undermine the kinds of complications promised by interdisciplinarity.
34
Interdisciplinary analysis assumes a picture of culture as multiple signifying practices
converging and diverging in intricate ways. As Susan Silbey has lately put it, ―[v]ariation []
concerning the meaning and use of [] symbols and resources is . . . expected because, at its core,
culture ‗is an intricate system of claims about how to understand the world and act on it.‘‖66
Revealing and conceptualizing such complex pictures remains up to historical investigations. Law
and literature studies within this framework hold further promises yet to unfold.

Radzyner School of Law, Interdisciplinary Center Herzliya. For thoughtful comments on earlier drafts I
am grateful to Ayelet Ben-Yishai, Roy Kreitner, participants of the Department of English Language and
Literature Colloquium at the University of Haifa 2012, and an anonymous reader for Law & Literature. For
financial support I am grateful to the Sacher Institute for Legislative Research and Comparative Law at the
Hebrew University of Jerusalem.
1
Importantly, critical projects in law & lit. rely on literature to expose "the literary" within law, in a
specifically law & lit. version of the indeterminacy argument. The law/lit. oppositions here are thus
complex; literature represents, in one sense, a methodology rather than simply a genre or discipline. Yet,
the oppositions are integral to the critical project, primarily as an account of power struggle in which
repressive law has the upper hand, while literature remains an ineradicable irritant.
2
Austin Sarat & Jonathan Simon, Cultural Analysis, Cultural Studies and the Situation of Legal
Scholarship, in CULTURAL ANALYSIS, CULTURAL STUDIES AND THE LAW 1, 8 (Austin Sarat & Jonathan
Simon eds., 2003).
3
CLIFFORD GEERTZ, LOCAL KNOWLEDGE 216 (1983).
4
DAVID KAUFMANN, THE BUSINESS OF COMMON LIFE, at viii (1995). In somewhat similar vein, David
Thomas discusses cultural studies' critique of liberalism, particularly its universality as tending to
rationalize privileges and exclusions; Thomas suggests that though history grounds these concerns, "history
also shows that ideas and vocabularies can be put to widely varying and even contradictory uses." DAVID
WAYNE THOMAS, CULTIVATING VICTORIANS: LIBERAL CULTURE AND THE AESTHETIC 25 (2004).
5
MARY POOVEY, MAKING A SOCIAL BODY ch. 1 (1995).
6
ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 8 (1986).
7
See MAX WEBER, ECONOMY AND SOCIETY ch. 4 (Guenther Roth & Claus Wittich eds., 1968) (1914);
ALAN MACFARLANE, THE ORIGINS OF ENGLISH INDIVIDUALISM 50-51 (1978).
8
For a review of the various positions see MACFARLANE, supra note 7, ch. 2 & conclusion. Macfarlane
himself argues that English capitalism, including private ownership of land, mobile labor, rational
accounting, a profit motive, and a separation between "family and farm," dates at least as far back as the
thirteenth century. The latest periodization should probably be credited to KARL POLANYI, THE GREAT
TRANSFORMATION (1967).
9
ZYGMUNT BAUMAN, LIQUID MODERNITY 4 (2000). On the melting of solids see also MARSHALL BERMAN,
ALL THAT IS SOLID MELTS INTO AIR: THE EXPERIENCE OF MODERNITY (1982), itself echoing KARL MARX
& FREDERICK ENGELS, THE COMMUNIST MANIFESTO (1848).
10
See, e.g., WALTER E. HOUGHTON, THE VICTORIAN FRAME OF MIND, 1830-1870 (1957); Frances E.
Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV. L. REV. 1497 (1983);
CATHERINE GALLAGHER, THE INDUSTRIAL REFORMATION OF ENGLISH FICTION 121-26 (1985) LEONORE
DAVIDOFF & CATHERINE HALL, FAMILY FORTUNES (1987); NANCY ARMSTRONG, DESIRE AND DOMESTIC
FICTION: A POLITICAL HISTORY OF THE NOVEL (1987).
11
MARCEL MAUSS, THE GIFT 73 (W.D. Halls trans., W.W. Norton 2000) (1923-24, 1954 Eng.).
12
POOVEY, supra note 5. For additional critiques see for example JOSEPHINE M. GUY, THE VICTORIAN
SOCIAL-PROBLEM NOVEL: THE MARKET, THE INDIVIDUAL AND COMMUNAL LIFE 70-71 (1996) (arguing that
specialization of disciplines was barely underway in mid nineteenth century, and that overlaps indicated
and enabled board conceptual continuities in explanations of various aspects of the environment).
35
From the direction of gender, the ideological construct's strict separation between men and women
was undermined by women exceeding their ascribed sphere. See, e.g., MARGOT FINN, THE CHARACTER OF
CREDIT: PERSONAL DEBT IN ENGLISH CULTURE, 1740-1914 (2003) (showing women's central role in
personal credit relations in the industrial and consumer revolutions); Lynda Nead, Mapping the Self:
Gender, Space and Modernity in Mid-Victorian London, in REWRITING THE SELF 167 (Roy Porter ed.,
1997) (arguing that separate spheres cannot be seen as an explanation for women's actual occupation and
experience of the public domain); Sandra Berns, Women in English Legal History: Subject (Almost), Object
(Irrevocably), Person (Not Quite), 12 U. TAS. L. REV. 26, 49-52 (1993) (distinguishing between the effects
of separate-spheres ideology on middle-upper and on working class women (being more inhibiting for the
latter)).
13
See for instance Gordon's comment that within the large definitional frame of capitalism based on private
property "there have been many historical capitalisms. And there might have been thousands more still."
Robert Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 85 (1984).
14
Poovey's study of the historical process of differentiation between literary and other genres dealing with
the economy provides one possible explanatory frame for this plural picture. MARY POOVEY, GENRES OF
THE CREDIT ECONOMY: MEDIATING VALUE IN EIGHTEENTH- AND NINETEENTH-CENTURY BRITAIN (2008).
15
This Part discusses classical contract law, focusing primarily on its origins in England. As citations
should make clear, however, these origins have been crucial for American contract law, and studies often
address English and American legal thinkers together when referring to classical contract.
16
11 ROBERT JOSEPH POTHIER, THE LAW OF OBLIGATIONS, app. V. at 35 (Evans ed. 1806), cited in A.W.B.
SIMPSON, Innovation in Nineteenth Century Contract Law, in LEGAL THEORY AND LEGAL HISTORY 171,
190 (1987), reprinted from 91 LAW Q. REV. 247 (1975).
17
SIMPSON, supra note 16; P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT 399-400 (1979);
D.J. IBBETSON, A HISTORICAL INTRODUCTION TO THE LAW OF OBLIGATIONS 222 (1999).
18
DUNCAN KENNEDY, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT 184-205 (2006); see also
ATIYAH, supra note 17, ch. 21 (discussing the classical model's strict distinction between contractual and
non-contractual liabilities). Kennedy also explains the emerging normative significance of market vis-à-vis
non-market relations: "When Austin and the analytical jurists who followed him, argued for the relegation
of the law of persons to the peripheral categories of 'abnormal persons,' quasi-contract and special instances
of tort liability, they reflected the conviction that the family relations were no longer either conceptually or
practically central to law." KENNEDY, supra, at 193.
19
ROY KREITNER, CALCULATING PROMISES ch. 1 (2007). For another discussion of the new focus on
promise as the source of contract in the nineteenth century see ATIYAH, supra note 17, at 146 (describing
the nineteenth-century understanding of the entire field of contractual relations around promises; until the
nineteenth century, argues Atiyah, a promise was neither a necessary nor a sufficient condition for the
existence of a legal duty). A less dramatic formulation might suggest that the process by which promise
became the focal point of contract had reached its zenith in the nineteenth century. See, e.g., E. Allan
Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 COLUM. L. REV. 576 (1969);
see also BROOK THOMAS, AMERICAN LITERARY REALISM AND THE FAILED PROMISE OF CONTRACT 33-34
(1997) (discussing the link between promise and contract as a recent one, emerging at the second half of the
eighteenth century).
Classical treatises on contract are telling of the focus. Take for example Pollock's leading treatise,
stating that "the expression of intention . . . includes the particular kind of expression which is called a
promise. We have as the proper groundwork of contract a promise determined by the acceptance of a
proposal." SIR FREDERICK POLLOCK, PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY 5 (London, Stevens
and Sons 1st ed. 1876). Or take Anson: "We are always in the habit of considering that an essential feature
of a contract is a promise . . . . A promise which a man is legally bound to perform creates an obligation . . .
." SIR WILLIAM REYNELL ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT 4 (Oxford, Clarendon
Press 1st ed. 1879).
20
KREITNER, supra note 19. Atiyah similarly notes how consent was increasingly sought and found by
courts inclined to impose liability. ATIYAH, supra note 17, at 455-56.
21
KREITNER, supra note 19, at 34, 91; see also ATIYAH, supra note 17, at 451-52 (explaining that liberality
or beneficence (which are the ground for a gift) were considered a good cause but not sufficient
consideration. Atiyah, however, does not discuss the constructive effect on views of the market emerging
from this distinction, but rather seems to think that consideration was gradually stripped of any important
36
role in contract law). Note that leaving gifts outside contract did not entail only a conceptual separation
between market and non-market relationships, but one which made family and friends inferior contestants
in fact when they happened to compete with market creditors. See W.R. CORNISH & G. DE N. CLARK, LAW
AND SOCIETY IN ENGLAND 1750-1950, at 207-08 (1989). See also the discussion infra note 22.
22
Thus the discouragement of contract in family and friendship settings. For instance, norms of
interpretation reversed the presumption of intent to be legally bound in family and friendship contexts.
UNGER, supra note 6, at 62. The doctrine of intent to create a legal obligation was a nineteenth-century
innovation which, as Simpson has argued, explained in terms of the will theory the absence of contractual
liability for domestic and social arrangements, SIMPSON, supra note 16, at 189. Peter Goodrich traces the
separation of the sphere of friendship from contract to an old separation of jurisdiction between religious
and secular law. Ecclesiastical case law placed friendship (including domestic relations) within the
jurisdiction of the church, giving primacy to patriarchal control – an effective Alsatia as Goodrich calls it.
Peter Goodrich, Friends in High Places: Amity and Agreement in Alsatia, 1 INT‘L J.L. CONTEXT 41 (2005).
Goodrich aligns with studies sensitive to the problematics of separate spheres for domestic relations, and
particularly for weaker persons in them. The point to note from my perspective is the effect of the active
rationalization of separations, and their centrality for nineteenth-century legal thinking, for the image of the
market.
23
Roscoe Pound, The End of Law as Developed in Juristic Thought (pt. 2), 30 HARV. L. REV. 201, 209-10
(1917).
24
HENRY SUMNER MAINE, ANCIENT LAW 296 (Ashley Montagu ed., Univ. of Ariz. Press 1986) (1864).
25
ALBERT VENN DICEY, LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND
DURING THE NINETEENTH CENTURY 151 (Macmillan 2d ed. 1962) (1905). For a similar understanding in
the American context see Amy Dru Stanley's discussion of William Graham Sumner, who believed that the
ascendance of contract would destroy bonds of personal dependence based on status, law and custom. AMY
DRU STANLEY, FROM BONDAGE TO CONTRACT 1 (1998).
26
KENNEDY, supra note 18, at xxxvi.
27
Robert B. Seidman, Contract Law, the Free Market, and State Intervention: A Jurisprudential
Perspective, 7 J. ECON. ISSUES 533, 555 (1973). For additional discussions of contract law's modeling of a
competitive market see for example LAWRENCE M. FRIEDMAN, CONTRACT LAW IN AMERICA 22 (1965)
("the law of contract was the legal reflection of that market and naturally took on its characteristics");
ATIYAH, supra note 17, at 435-37 (arguing that the model was based on the free market bargaining process
which was to give full rein to the greater skill and knowledge of those who calculated risks better); Melvin
A. Eisenberg, Why There Is No Law of Relational Contracts, 94 NW. U. L. REV. 805, 808 (2000)
("[C]lassical contract law rejected principles of unfairness, which typically have their fullest application in
transactions that occur either off-market or on very imperfect markets and have little application to
contracts made between strangers on perfect markets.").
28
The tension between freedom of choice and contractual enforcement is often used as a vantage point for
the critique of the classical model. See, e.g., Betty Mensch, Freedom of Contract as Ideology: P.S. Atiyah's
The Rise and Fall of Freedom of Contract (1979), 33 STAN. L. REV. 753 (1981) (book review); Mark Pettit,
Freedom, Freedom of Contract, and the "Rise and Fall," 79 B.U. L. REV. 263 (1999); R.B. Ferguson,
Commercial Expectations and the Guarantee of the Law: Sales Transactions in Mid-Nineteenth Century
England, in LAW, ECONOMY, AND SOCIETY, 1750-1914, at 192 (G.R. Rubin & David Sugarman eds., 1984).
29
Explanations offered for objectivism include the avoidance of factual inquiries and mistakes; the
promotion of uniformity and predictability, tied with the limitation of the scope of jury involvement; the
imposition of absolute liability in contract (limiting the range of excuses); and the limitation of judicial
policing of contract through this pseudo-scientific measure of protecting reliance. See ATIYAH, supra note
17, at 459-60, MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 35 (1992);
GRANT GILMORE, THE DEATH OF CONTRACT 44-45 (1974); and KENNEDY, supra note 18, at 239-40,
respectively. These explanations all point to a commitment to market security from different directions.
Atiyah's explanation (avoiding factual inquires), note, is not necessarily so intended. Atiyah seems to
consider objectivism as part of the "fall" of the classical model of contract, and the re-emergence of ideas
of reliance. For a view casting doubt on the dominance of objectivism in contract case law, at least in the
American context, see KREITNER, supra note 19, at 111. It appears that legal objectivism which casts doubt
on the very meaning of contract prevalent in the nineteenth century only comes in the early decades of the
twentieth century, when internal critiques of contract cease upon objectivism's contradictions. Until then,
37
objectivism is a practice of interpretation which, when theorized, falls back on the language and logic of the
will theory which it arose to strengthen. See HORWITZ, supra, at 35-39.
On the legal construction of the market through a prudence of distrust see UNGER, supra note 6, at
66.
30
Berns, supra note 12, at 43; John V. Orth, Contract and the Common Law, in THE STATE AND FREEDOM
OF CONTRACT 44, 52 (Harry N. Scheiber ed., 1998) ("the contract of marriage carries the parties, as it were,
to the threshold of their new status, but not beyond"). For an expansive account of models of marriage in
the Anglo-American tradition see JOHN WITTE, JR., FROM SACRAMENT TO CONTRACT: MARRIAGE,
RELIGION, AND LAW IN THE WESTERN TRADITION (1997). Witte argues that the contractarian model of the
Enlightenment, in which marriage was in essence a voluntary bargain whose terms were set by the parties
themselves, was adumbrated in the eighteenth century, elaborated theoretically in the nineteenth, but
implemented legally only in the twentieth century. The model could not transform the law of the nineteenth
century, though it induced greater protections for wives and children. Id. at 10, 194-215.
31
Finn describes the regime, finally abolished with full contractual capacity given to married women only
in the interwar years. FINN, supra note 12, at 265-66, 325. See also Berns, supra note 12, for the history of
the doctrine.
32
Anson made the logic explicit when he excluded from treatment transactions which were "not such as we
ordinarily term Contracts." Among these were "[a]greements which affect a change of status immediately
upon the expression of the consent of the parties, such as marriage, which, when consent is expressed
before a competent authority, alters at once the legal relations of the parties in many ways." SIR WILLIAM
REYNELL ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT 3 (Oxford, Clarendon Press 1st ed.
1879); KENNEDY, supra note 18, at 204-05.
33
For an account of the public debate about marriage as contract see G.R. SEARLE, MORALITY AND THE
MARKET IN VICTORIAN BRITAIN ch. 7 (1998).
34
ATIYAH, supra note 17, at 401.
35
Susie L. Steinbach, Promises, Promises: Not Marrying in England, 1780-1920 (May 1996) (unpublished
Ph.D. dissertation, Yale University) (on file with the Yale University Library).
36
GINGER S. FROST, PROMISES BROKEN: COURTSHIP, CLASS AND GENDER IN VICTORIAN ENGLAND 17
(1995); SASKIA LETTMAIER, BROKEN ENGAGEMENTS, THE ACTION FOR BREACH OF PROMISE OF MARRIAGE
AND THE FEMININE IDEAL, 0491-0011 (2010). Note that Steinbach does not deny the gender bias of the
action for breach of promise. In fact, her analysis turns on gender and class no less than those of Lettmaier
or Frost. Instead, Steinbach argues that women were able to bring and win suits in large numbers due to the
influence of contract (and sentiment).
37
For a detailed account of the competing and complementing frameworks involved in conceptualizing the
promise of marriage – those of affection, contract, and status (primarily gender and class), see Anat
Rosenberg, The Promise of Marriage: Liberalism on the Defense (under review).
38
Frost distinguishes between the economic and gender aspects of the action, arguing that courts were
biased towards women as opposed to men plaintiffs. My suggestion is that this bias is inseparable from the
economic meanings attached to the marriage contract, rather than external or different from them. For
Frost's distinction between economic meanings and gender-bias see FROST, supra note 36, conclusion.
39
Id.
40
The "fall" of classical thought in law is beyond the scope of this paper. Suffice to say that in the
nineteenth century encroachments of contract, today habitually seen as the rise of "social law," did not have
significant effect on the legal version of sphere separations, and were conceptualized as indeed
encroachments, or interventions — in which the public interferes with the private. Counterprinciples, if you
will.
41
RAYMOND WILLIAMS, THE ENGLISH NOVEL FROM DICKENS TO LAWRENCE 11 (1971).
42
IAN WATT, THE RISE OF THE NOVEL 63-64 (1957).
43
See, e.g., FRANCO MORETTI, THE WAY OF THE WORLD (2000) (discussing the English novel's tendency,
together with law, to legitimate the established order); DANIEL COTTOM, SOCIAL FIGURES (1987) (arguing
that the realist novel was one of the major forms of the rational representation of a universal order which
was in fact a projection of the newly dominant English middle class); LEO BERSANI, A FUTURE FOR
ASTYANAX: CHARACTER AND DESIRE IN LITERATURE ch. 2 (1978) (arguing that the psychological
readability of characters in novels served to guarantee the established social order); DEIDRE SHAUNA
LYNCH, THE ECONOMY OF CHARACTER: NOVELS, MARKET CULTURE, AND THE BUSINESS OF INNER
38
MEANING (1998) (arguing that nineteenth-century literature individuated citizens and at the same time
purveyed assurances about human homogeneity, and was thus involved in the transition to middle class
hegemony); Irene Tucker, What Maisie Promised: Realism, Liberalism and the Ends of Contract, 11 YALE
J. CRITICISM 335 (1998) (arguing that the realist novel functions as a cultural instrument by which the
rationalization of contingency takes place, thus enabling the agency of subjects with limited knowledge and
control and sustaining the idea of autonomy, somewhat like contract); PATRICK BRANTLINGER, FICTIONS OF
STATE: CULTURE AND CREDIT IN BRITAIN, 1694-1994, at 146 (1996) (arguing that novels, even when
critical of the social evils of capitalism, underwrite the naturalness and stability of the social realm); W.J.
HARVEY, CHARACTER AND THE NOVEL 24 (1965) ("One of the few Marxist generalizations about literature
to hold up reasonably well when put to the test of detailed historical examination is the thesis that the
development of the novel is intimately connected with the growth of the bourgeoisie in a modern capitalist
system. From this social process derive the assumptions and value we may conveniently if crudely lump
together as liberalism."); Linda Shires, The Aesthetics of the Victorian Novel: Form, Subjectivity, Ideology,
in THE CAMBRIDGE COMPANION TO THE VICTORIAN NOVEL 61, 65 (Deidre David ed., 2001) ("[The realist
novel's] hero or heroine is molded to the bourgeois ideal of the rational man or woman of virtue."); Joseph
W. Childers, Industrial Culture and the Victorian Novel, in THE CAMBRIDGE COMPANION TO THE
VICTORIAN NOVEL, supra, at 77, 77-78 ("[A] neat separation of industrialism and the novel is nearly
impossible . . . . Each looked to the other for models of effecting and controlling as well as understanding
change.").
44
GALLAGHER, supra note 10, at 114.
45
MORETTI, supra note 43, at 216-21. For additional discussions of novels' substantiation of the
public/private distinction see ALEXANDER WELSH, GEORGE ELIOT AND BLACKMAIL ch. 4 (1985) (arguing
that three conditions affected the need for privacy: a self-regulating economy, social mobility and choice of
occupation, and representative government. The nineteenth-century novel, in turn, dramatized the growing
fear of publicity, on which privacy relied for its protection); PETER BROOKS, BODY WORK ch. 2 (1993)
(discussing the paradox of privacy in novels, a notion consubstantial with its violation).
The study of domesticity in novels is another area of rich analyses of sphere separations. See, e.g.,
NANCY ARMSTRONG, HOW NOVELS THINK: THE LIMITS OF BRITISH INDIVIDUALISM FROM 1719-1900
(2005) (arguing that novels served to protect the ideology of individualism — the claim that one could
compete successfully with other men in the public sphere, and serve as caretaker to his dependents — by
masking the contradictions involved in that ideology); ARMSTRONG, supra note 10 (arguing that novels
made the political move which solidified the rise of the middle classes through the creation of the
household as an apolitical realm serving as antidote to politics and the marketplace).
46
See, e.g., JOHN PLOTZ, THE CROWD: BRITISH LITERATURE AND PUBLIC POLITICS ch. 6 (2000)
(questioning the valuation of privacy in novels, and pointing to a relation between private freedom and
public crowds).
47
All references are to ANTHONY TROLLOPE, THE WAY WE LIVE NOW (Frank Kermode ed., Penguin Books
1994) (1875).
48
The term is Baudrillard's, but I use it in an almost opposite sense. Baudrillard attributes floating causality
to the manipulation in which circles of causality deny the location of an origin or reference, creating a
hyperreal simulation. My use of floating causality is unconcerned with the question of circularity or
departure from reference. Rather, my concern is with a problematization of what one might, under a
separate-spheres conception, expect to find in the set of relevant causes. On Baudrillard's use see JEAN
BAUDRILLARD, Simulacra and Simulations, in SELECTED WRITINGS 166 (Mark Poster ed., 1988); Kim
Sawchuk, Semiotics, Cybernetics and the Ecstasy of Marketing Communications, in BAUDRILLARD: A
CRITICAL READER 89, 105 (Douglas Kellner ed., 1994).
49
All references are to THOMAS HARDY, THE MAYOR OF CASTERBRIDGE (Penguin Popular Classics 1994)
(1886).
50
Interestingly, Henchard‘s bankruptcy is often viewed by critics as conscientious. See, e.g., Albert J.
Guerard, Henchard’s Self-Condemnation, in THE MAYOR OF CASTERBRIDGE: A NORTON CRITICAL EDITION
326, 328 (Phillip Mallet ed., 2d ed. 2001), reprinted from ALBERT J. GUERARD, THOMAS HARDY (1949).
Such readings seem to be rooted in the isolation of the bankruptcy event from its narrated entanglements,
as the creditors themselves do in The Mayor of Casterbridge.
51
All references are to ELIZABETH GASKELL, RUTH (Alan Shelton ed., World‘s Classics 1985) (1953).
39
52
Many of the novel's structures and themes gain meaning through this framework. For instance, Bleak
House's eccentric characters are from this perspective a formal expression of their thematic failure to
become involved: failing to become involved within the story, eccentrics never become "real." Bleak
House's famed critique of the legal system is likewise an expression of the concept of interdependence:
Chancery falsely conceives itself as a closed system. What comes into law from other spheres of life loses
all sense; its representation ceases to be a representation and becomes an independent essence without
referent, a state of affairs represented in the novel as a monstrosity.
53
All references are to CHARLES DICKENS, BLEAK HOUSE (Penguin Classics 2003) (1853).
54
All references are to GEORGE ELIOT, MIDDLEMARCH: A STUDY OF PROVINCIAL LIFE (David Carroll ed.,
Oxford World's Classics 1996) (1872).
55
See supra note 45 and accompanying text.
J. Jeffrey Franklin, Anthony Trollope Meets Pierre Bourdieu: The Conversion of Capital as Plot in the
Mid-Victorian British Novel, 2003 VICTORIAN LITERATURE & CULTURE 501, 510.
57
The division of labor is more familiarly discussed as the background of modern law and literature, than
as their effect. Yet, like other social realities, the division of labor gains meaning and comes into being as a
significant part of human experience by virtue of its representation and interpretation in sites of social
thinking, like law and novels.
58
WEBER, supra note 7.
59
EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY (George Simpson, trans., 1933) (1893) (depicting
the rise of modern society through the notion of organic solidarity, based on a division of labor). (Consider
also Durkheim's basic insight that exchange always presupposes a division of labor, id. at 125. At the
historical Age of Contract, when contract becomes central to the social imagination, the centrality of the
division of labor is a basic.)
60
CHARLES TAYLOR, SOURCES OF THE SELF pt. 3 (1989).
61
And so, in terms of the discussion of the psychology of subjects under capitalism, one could perform an
analysis similar to that proposed in this paper of identifying commonalities in the construction of subjects
in law and novels, as well as differences.
62
See, e.g., Terry Eagleton, Myths of Power in Wuthering Heights, in WUTHERING HEIGHTS 118 (Patsy
Stoneman, ed., 1993), reprinted from TERRY EAGLETON, MYTHS OF POWER (1976); Naomi M. Jacobs,
Gender and Layered Narrative in Wuthering Heights, in WUTHERING HEIGHTS, supra, at 74, reprinted
from 16 J. NARRATIVE TECH. (1986); Lyn Pykett, Gender and Genre in Wuthering Heights: Gothic Plot
and Domestic Fiction, in WUTHERING HEIGHTS, supra, at 86, reprinted from LYN PYKETT, EMILY BRONTE
(1989).
63
All references are to EMILY BRONTE, WUTHERING HEIGHTS (Barnes & Noble Classics 2004) (1847).
64
For a detailed elaboration of the story see Anat Rosenberg, Classical Contract Law, Past and Present,
(under review, copy available with author).
65
Bradin Cormack is here succinct: "[L]egal analysis becomes critical by reopening the exclusionary
discourse of law onto a more complex scene than that remembered as the image the law produces through
and as its own historiography." BRADIN CORMACK, A POWER TO DO JUSTICE 28 (2007) (discussing Peter
Goodrich's work).
66
Susan S. Silbey, J. Locke, op. cit.: Invocations of Law on Snowy Street (Jan. 2012), available at
http://ssrn.com/abstract=1978790 (citing where indicated CONSTANCE PERIN, SHOULDERING RISKS, at xii
(2005)).
56
40